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The Rules of Impeachment
Democrats get serious about the next phase of inquiry.
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
Since taking office in 2017, President Trump and his administration have sought to remove — and in some cases, destroy — many of the guardrails of precedent and tradition surrounding the conduct of the executive branch.
On Thursday, the House of Representatives will vote on whether to erect a series of guardrails of its own, for the possible impeachment of the president. The resolution now before Congress avoids past missteps by allowing extended questioning of witnesses by staff lawyers before preening lawmakers take the stage, and it sets fair rules that respect precedent.
Such rules are needed because the stakes are so high and the charges against Mr. Trump so serious. The latest bombshell landed Tuesday, when Lt. Col. Alexander Vindman, a decorated Army officer who serves as the top Ukraine expert on the National Security Council, testified that he was on the July 25 call between Mr. Trump and President Volodymyr Zelensky of Ukraine, and that he heard Mr. Trump ask Mr. Zelensky to investigate a political rival, former Vice President Joe Biden. More concerning, Colonel Vindman shared that the White House’s reconstructed transcript of the call left out some key details — and that administration officials refused his repeated efforts to correct the record before it was released to the public, according to an account in The Times.
Colonel Vindman considered Mr. Trump’s handling of Ukraine so damaging to national security that he reported his concerns to his superiors. Twice.
With such revelations piling up, the White House and its backers have opted for a defense strategy that avoids addressing the president’s actions and focuses instead on discrediting the impeachment process as illegitimate and unfair. They have criticized House Democrats, led by Speaker Nancy Pelosi, for not holding a formal authorization vote, for conducting closed-door depositions and for denying the president the due process afforded in formal criminal proceedings.
None of these objections hold up. Even so, Democrats aim to address them with the provisions of the resolution they will consider on Thursday.
Central to the resolution’s ambitions are ensuring order, transparency and fairness as the inquiry moves to the public stage. Rules are being set for conducting public hearings (including who gets to question whom and for how long), publicly disclosing depositions and issuing subpoenas. Guidelines have been established for the participation of Mr. Trump and his lawyers and the transfer of evidence from other committees to the Judiciary Committee, where any articles of impeachment would be considered. The rules providing for the minority party to call its own witnesses are basically the same as those set by Republicans during the Clinton impeachment.
Indeed, many of the procedures outlined in the resolution, and in a related set of procedures drawn up by the Judiciary Committee, are in line with those followed in the impeachment inquiries in 1974 and 1998. These include the president receiving copies of all evidentiary material; the president and his counsel being invited to all hearings; and his counsel being permitted to ask questions at the presentation of evidence, submit evidence on the president’s behalf, question witnesses, object to the questioning of witnesses and so on.
Perhaps the most notable departure from precedent is a provision concerning the Judiciary Committee stipulating that if the president “unlawfully” refuses to make witnesses or evidentiary material available to the investigating committees, “the chair shall have the discretion to impose appropriate remedies, including by denying specific requests by the president or his counsel under these procedures to call or question witnesses.”
How to determine what qualifies as “unlawful” and what remedies are “appropriate” will most likely provoke heated disagreement. But in light of Mr. Trump’s open policy of obstructionism, Democrats are right to seek extra leverage. The alternative is lengthy litigation, which would chiefly serve the president’s interest.
Procedures like these aim to fulfill Congress’s obligation to be as deliberative, fair and open as possible. That is the right focus. Of course, no matter how many concessions the Democrats make, Republicans will cry foul.
In a statement Tuesday, the White House press secretary, Stephanie Grisham, called the inquiry “an illegitimate scam” that left Mr. Trump’s rights “undefined, unclear, and uncertain.” It would be interesting to know what impeachment process the president would approve.
As the investigation moves into its public phase, Democrats are determined not to get bogged down in court fights over every document and hostile witness. “We are not willing to let the White House engage us in a lengthy game of rope-a-dope in the courts, so we press ahead,” said Representative Adam Schiff, the chairman of the Intelligence Committee, who has been spearheading the investigation.
When Charles Kupperman, a former deputy national security adviser, defied a subpoena on Monday, after filing a lawsuit last week asking the courts to decide whether he must testify, Mr. Schiff warned that such noncooperation only fueled the case for impeachment. “If this witness had something to say that would be helpful to the White House, they would want him to come and testify,” he said.
This is the right approach. Court cases can and should continue. But if transparency and accountability are the goals of this process, they will be achieved by focusing on those officials who are willing to serve the public interest by testifying under oath about their experiences. The White House is not interested in transparency or accountability, which explains its efforts to stop potential witnesses from appearing.
In other words, process, as important as it is, gets you only so far. Mr. Trump seems to agree. “Process is wonderful,” he told reporters on Monday. “But I think you ought to look at the case.”
Mr. Trump should be careful what he wishes for.
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